Matter of Estate of Baxter ( 1992 )

HANSEN, Vice Chief Judge

dissenting.

I respectfully dissent. Although I agree Appellees are not foreclosed from consideration as heirs under the laws of intestate succession merely because they were disinherited under the terms of the will, I disagree with the majority holding that Appel-lees are Testator’s legally adopted children. Title 10 O.S. 1981 § 58 provides:

No adoption may be challenged on any ground either by a direct or collateral attack more than one (1) year after the entry of the final adoption decree regardless of whether the decree is void or voidable, and the minority of the natural parents shall not operate to prevent this time limit from running.

The majority states the applicability of § 58 to this case is irrelevant because no “adoption” by Marybelle ever took place. Admittedly, even though the validity of Testator’s relinquishment of all rights to Appellees and Marybelle’s “readoption” of them may be questioned, the fact remains that 35 years have elapsed since Mary-belle’s “readoptions” of Appellees with their written consent. Moreover, no direct or collateral attack has ever been made on the aforementioned judgment, not even an attack on constitutional due process grounds, which, if made, could provide a challenge to the proceedings beyond the one-year period. See Matter of Adoption of Lori Gay, 589 P.2d 217 (Okl.1978).

In In re Talleys’ Estate, 188 Okla. 338, 109 P.2d 495 (1941) in which a 14 year-old boy was adopted, with the boy’s consent, by his natural father, the Supreme Court held that when the father’s adoption proceedings were approved by the court, it had the effect of revoking or superseding the order wherein Mr. and Mrs. Talley had previously adopted him. It further held that since the new adoption by the natural father destroyed the first adoptive parents’ obligation to care for, educate, or support the boy, it also destroyed the boy’s right to inherit.

We find the aforementioned case to be persuasive and applicable to the instant facts. Thus, because Testator and Appel-lees lost the parental/child relationship, Testator’s parental rights had the effect of being terminated by the “readoption” of Appellees by Marybelle, and they are no longer his adopted children. Under the laws of intestate succession, they are not heirs at law of Testator, nor is Jimmy entitled to Letters of Administration with Will Annexed. Moreover, Testator clearly intended that Appellees not inherit from him.

Therefore, under the particular circumstances of this case, I would reverse and remand this matter with directions for the trial court to enter an order entitling Mary Etta Clark to Letters of Administration With Will Annexed of this estate and for further proceedings consistent with the views herein expressed.